Is Killing Wrong?

A Study in Pure Sociology

Mark Cooney, Donald Black

• Publisher: University of Virginia Press
• Year: 2009
• ISBN:
  9780813928357
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

"Thou shalt not kill" is arguably the most basic moral and legal principle in any society. Yet while some killers are pilloried and punished, others are absolved and acquitted, and still others are lauded and lionized. Why? The traditional answer is that how killers are treated depends on the nature of their killing, whether it was aggressive or defensive, intentional or accidental. But those factors cannot explain the enormous variation in legal officials' and citizens' responses to real-life homicides. Cooney argues that a radically new style of thought—pure sociology—can. Conceived by the sociologist Donald Black, pure sociology makes no reference to psychology, to any single person's intent, or even to individuals as such. Instead, pure sociology explains behavior in terms of its social geometry—its location and direction in a multidimensional social space.

Is Killing Wrong? provides the most comprehensive assessment of pure sociology yet attempted. Drawing on data from well over one hundred societies, including the modern-day United States, it represents the most thorough account yet of case-level social control, or the response to conduct defined as wrong. In doing so, it demonstrates that the law and morality of homicide are neither universal nor relative but geometrical, as predicted by Black's theory.

1 THE MORALITY OF HOMICIDE

“Thou shalt not kill.” No moral principle is more basic, widely understood, or universally accepted. Everybody knows from a young age that human life is sacred, and to take it willfully is the most wicked thing a human being can do. The principle is articulated in homes, schools, churches, and courtrooms, repeated by spiritual and temporal leaders, and reinforced by the dramas of good and evil, factual as well as fictional, that entertain and enthrall us. Not every culture phrases the prohibition as we do, and not every culture may make it their number one taboo, but the proscription of killing appears to be universal across human groups (see, e.g., Linton 1952; Hoebel 1954: 286; D. Brown 1991). Without it, how would societies survive? True, there are exceptions, such as killing in self-defense and during wartime. But precisely because self-defense and war are special cases, they do not undermine the general principle. Killing within a society (the focus of the present book) is wrong, pure and simple, and any deviations have to be sternly justified (see, e.g., Devine 1978; McMahan 2002: chap. 3). And because it is wrong, homicide must be punished consistently and evenly.¹ The rich are not to be favored over the poor, the more educated over the less educated, the native born over the newly arrived. Those who take human life are to be sanctioned, one and all, even-handedly.

This high-minded principle has only one enemy: reality.

MORAL REALITY

Look not at what people say or think, but at what they do—adopt a sociological rather than a philosophical perspective—and the most striking feature of human killing is the sheer variability of responses it evokes. While one homicide triggers the utmost severity, a second elicits no sanctions at all. Whatever the moral principles or legal rules state, the penalties and punishments actually inflicted upon those who kill differ widely in severity and type across time and place. Indeed, so variable is the handling of homicide that, far from being evil, certain killings are treated as the epitome of virtue, their perpetrators enjoying not just public approval but social acclaim (see Kooistra 1989). One such person was James Grant, accused of murdering Rives Pollard, a newspaper editor, in Richmond, Virginia, in 1868.

PRAISING THE KILLER

The Saturday, November 21, number of Pollard’s paper, the Southern Journal, contained a scandalous report of the flight of a young woman, her secret engagement, and her possible marriage. The story did not name the woman but provided enough detail that readers could identify her as Mary Grant, daughter of one of the richest men in Richmond, William H. Grant. The article brought into question Mary’s virtue and the ability of the men of her family to protect her. Many read it as a slur on the Grant family’s honor, and wondered how the family would seek satisfaction.

Three days later, Pollard was shot and fatally wounded as he alighted from a carriage outside his office. Police officers quickly determined that he had been killed by buckshot fired from the upper windows of the building opposite. Searching the building, the police broke open a third-floor door and found a man armed with four guns, including a double-barreled shotgun loaded with buckshot. One of the barrels had recently been fired. The window facing the street on which Pollard had been killed was propped open with a hairbrush and the sill was blackened. The man was James Grant, William Grant’s eldest son, Mary’s brother. The police took him into custody. As he was led out onto the street, cries of “Three cheers for Grant” could be heard from the assembled crowd.

Within three hours of the shooting, a coroner’s jury had convened, examined the body, and heard police and civilian testimony. The verdict was announced in less than an hour: Pollard had died from gunshot fired “by some person unknown to the jury.”

Nevertheless, some three months later, Grant was indicted for Pollard’s murder. The trial was delayed because the court could not find sufficient jurors who were not convinced of Grant’s innocence: out of a jury pool of over 380 people, only two were deemed fit to serve. The others were dismissed for remarks such as “I would sooner hang the jury than the prisoner.”

After the court turned to other towns to form a jury pool, the trial began. Grant pleaded not guilty. The prosecutor presented additional evidence of guilt: that two of the guns found on Grant on the morning of the shooting had been recently purchased by Grant himself, that Grant had obtained the key to the room the night before, that no guns were kept there, and that the room’s tenant had met Grant there at 7 AM on the morning of the shooting and drunk a glass of wine with him.

The judge reminded the jury several times of its duty to apply the law of the land. After deliberating for only forty minutes, the jury came in with its verdict: not guilty. The spectators packed into the courtroom gallery erupted in jubilant approval. The defendant left the courtroom in triumph, surrounded by a throng of well-wishers. (see Hamm 2003)

Grant was lauded by his friends and neighbors because he had defended his family’s good name, or honor. Because such notions of honor are no longer found among modern elites, it is tempting to dismiss the case as a quaint reminder of a bygone era. That would be a mistake, for both a narrow and a broad reason. Narrowly, lethal conflicts over personal and family honor remain a reality in places as diverse as the Middle East and the poor urban communities of modern America. In cultures in which honor looms large, those who kill in its name continue to garner admiration and respect (see, e.g., Shakur 1993; Peratis 2004).

More broadly, defense of honor is only one of two broad scenarios in which those who take human life are lionized. The Jívaro of the Ecuadorian Amazon are not the only people among whom a man gains great prestige “by helping the people of his locality in eliminating their enemies” (Harner 1972: 112). The enemy slain in these heroic killings may assume different forms. In rural Laos, for instance, individuals who assassinate village leaders who have abused their positions of power are “often admired, occasionally even revered” (Westermeyer 1973: 123).² A Celtic cross in County Donegal, Ireland, memorializes three men who ambushed and killed Lord Leitrim, a highly unpopular Anglo-Irish landlord, and two employees as they were traveling to evict yet another tenant from his estate in 1878 (Thomson 1974: 196). The killers’ deed is even commemorated in that most democratic of poetic forms, a drinking toast:

Here’s to the hand that made the ball

That shot Lord Leitrim in Donegal.³

Permanent glory also attaches to the Montana vigilantes who killed fifty-seven people between 1864 and 1870, including, and most notably, a corrupt sheriff, Henry Plummer:

To this day, the men who banded together and killed the sheriff are revered as great heroes in Montana. The shoulder patches worn by members of the Montana Highway Patrol bear the numbers 3-7-77, the mysterious warning the vigilantes posted on doors or tent flaps when they wanted to drive someone into exile. A high school in Helena, the state capital, calls its football field Vigilante Stadium and its yearbook The Vigilante. Bozeman has a Vigilante theater company. Several of the vigilante leaders went on to successful careers as legislators, lawmen, governors, and judges. One was a founder of Creighton University, another served as U.S. senator when Montana achieved statehood. Their exploits have been written about by authors of every stripe, from hacks to Mark Twain, and even caught the attention of Charles Dickens. (F. Allen 2004: xvi)

Even today, the killing of certain enemies will elevate the killer’s standing among the law-abiding. People who eliminate notorious thugs, thieves, or troublemakers in crime-ridden neighborhoods, for instance, may reap admiration and applause for their service to the community (see, e.g., Kubrin and Weitzer 2003: 171–77). Killers can still be heroes.

THE CONTINUUM OF POPULAR JUSTICE

Showering praise on the killer is clearly not the only, or even the most common, way ordinary people respond to homicide, today or in earlier societies. Popular justice takes many forms (Black 1993).⁴ At different times and places, those who take human life are ignored, forgiven, boycotted, banished, denounced, hunted, attacked, kidnapped, enslaved, tortured, assassinated, lynched, and mutilated. They flee, negotiate, recruit allies, seek protection, summon mediators, beg forgiveness, make amends, pay restitution, have their property destroyed, and launch counterreprisals. Conveniently, these many forms can be reduced to a small number of categories, ranked according to their severity. Let us consider each category briefly.

The severity of popular justice

If praise represents social approval, toleration consists of taking no moral action in response to a homicide (Black 1990: 58). Toleration is purest when the homicide is simply ignored—the killing is surrounded by a circle of silence. In less pure forms, mild sanctions are imposed—the victim’s family criticizes the killer, or gossips about him behind his back, or defines him as mentally ill (most killers are male). Toleration should not be mistaken for approval. People may dislike, even hate, the killer, but do little or nothing to him. In no known society is every homicide tolerated, although the Gebusi of New Guinea come close. In the period 1940–82, almost nine out of every ten Gebusi homicides were of individuals or their kin suspected of injuring others through acts of sorcery and whom the community believed deserved to die, a judgment usually accepted by the victim’s kin, albeit reluctantly, with the result that killers typically went about their daily business free from punishment, stigma, or the obligation to make payment (Knauft 1985: 116–23; compare Knauft 2002). The Gebusi are unusual in tolerating such a large proportion of their killings, but in most societies at least some killings have no moral repercussions: the homicide itself dies.

Shunning—the curtailment or elimination of interaction following a conflict (Black 1990: 49)—is the first category of truly negative sanctions or penalties. People who kill are often given the “cold shoulder.” Friends no longer drop in, acquaintances do not pause to say hello, people turn away in the street. Even their family and friends may be ostracized. Shunning of this type is the most severe popular sanctions that killers today typically experience (though not the most severe sanction they ever experience). But shunning comes in more coercive guises as well. The Cheyenne Indians, for instance, banish certain killers from the tribe altogether for a period of years (Llewellyn and Hoebel 1941). Shunning, then, is a matter of degree, and can vary significantly in amount and severity across cases.

Compensation is the payment of wealth, such as livestock, crops, slaves, or money, following a conflict (Black 1987). Killers and their families making restitution to the victim’s family for their loss is a common practice in many preindustrial societies. Yet these payments can rarely be taken for granted, typically requiring delicate negotiations between the two sides that may, as with the nomads of Tibet, extend over many days or even weeks, perhaps with the aid of a mediator (see, e.g., Ekvall 1964: 1142–47). Once the parties agree to pay and accept compensation, the risk of being attacked that typically hangs over the killer’s side lessens, but does not always dispel. The Mae Enga of New Guinea are by no means the only group among whom victims’ families “reserve the right to avenge the homicide in kind, even after accepting the killer’s pigs” (Meggitt 1977: 123). To encourage the payment of compensation, some cultures have scales that stipulate the sum to be paid for a homicide. In practice, these sums only serve as starting points in the negotiations between the two sides. The amount actually sought and paid will vary from case to case: some lives cost more than others.⁵

Self-help—the most severe of the popular sanctions—is the use of aggression in retaliation for the homicide (Black 1990: 44). Most often it is the family, friends, or neighbors of the victim who pay back the killing with a killing of their own (vengeance). Sometimes, though, it is the community at large that engages in self-help, as when a town denounces or, more extremely, lynches a killer. Either way, the person attacked is not always the killer himself: under conditions of “collective liability,” any member (or perhaps any male member) of his family, neighborhood, or tribe is a potential target (see, e.g., Stauder 1972: 165–66). Lethal self-help, like all forms of popular justice, varies in severity. In less severe cases, just one person is killed; in the most severe cases, an entire group is tortured, slaughtered, mutilated, and eaten. Between these extremes lies feuding—the “precise, extended, and open exchange of killings, usually one death at a time” (Black 2004a: 153). Feuding in the wake of homicide occurs in many regions of the world, including the arid deserts of North Africa and the Middle East (see, e.g., Peters 1967), the Balkan highlands (see, e.g., Hasluck 1954), the rain forest of South America (see, e.g., Chagnon 1977), the lush tropical lands of the Philippines (see, e.g., Kiefer 1972), and the Hindu Kush mountains of northern Pakistan (see, e.g., Aase 2002). But in none of these places is feuding automatic: only certain kinds of killings trigger a cycle of retaliatory violence. Again, individual cases vary.

FROM POPULAR JUSTICE TO LAW

In the earliest human societies, all justice was popular, and homicides were handled through some combination of praise, toleration, shunning, compensation, and self-help. Over the centuries, control over the handling of homicide has shifted from society to the state. Today, legal officials normally step in following a homicide, seeking to arrest, try, convict, and sentence killers. In the process, capital punishment has replaced feuding and lynching, and prison sentences have supplanted compensation payments. How did this transformation come about? And how complete is it?

Law is a product of the state. From its birthplace in Mesopotamia some five thousand years or so ago, the state has spread in various forms across the globe. With it, law has expanded and popular justice has shrunk, gradually but inexorably. The first states resulted from the emergence of a central authority capable of enforcing at least some of its rulings. These aborning states did not enjoy anything close to a monopoly of violence, especially in remote areas, their leaders having to be content with modest goals such as “deferring violence, encouraging arbitration, limiting reprisal” (R. Fletcher 2003: 116). Early legal systems therefore often tolerated, or were forced to tolerate, severe popular sanctions such as feuding (Wallace-Hadrill 1959). Often, the state’s first step in establishing permanent legal authority over homicide was to continue the system of compensation payments prescribed by prelegal codes, but to stiffen it with the threat of sanctions for those who would not settle peacefully.

Only gradually did punishment displace compensation. It typically did so centrifugally, from the capital outward, coming first to major population and economic centers, later to smaller settlements, and latest of all, to isolated outlying regions. In Britain, the Crown had established jurisdiction over English homicide cases as early as the thirteenth century. The king’s judges traveled throughout the country, hearing cases and investigating suspicious deaths in provincial centers. Although a large number of killers were able to flee, the state was able to identify and outlaw many of them, and few—perhaps only those of higher social standing—appear to have been able to escape prosecution by paying compensation (Given 1977; Hanawalt 1979; Powell 1989: 100–103). In the outlying regions of Wales, Ireland, and Scotland, however, many homicide cases continued for several more centuries to be settled by a transfer of wealth, usually with official blessing (R. Davies 1969; Nicholls 1972: 53–57; Wormald 1980). Until the end of the sixteenth century, for example, homicides among the Scottish elite, or those who had elite patronage, were often handled by a panel of arbitrators who got the parties to agree in writing to a compensation payment and to sign (along with their maternal and paternal kin) a letter of forgiveness. To finalize things, a judge might be asked to certify the agreement and issue a formal legal pardon to the killer (Wormald 1980; K. Brown 1986: chap. 2). The British Isles were not unique. The kingdom of Sweden prescribed death for many homicides, but as late as the sixteenth century the courts usually allowed the killer to save his life by paying compensation to the victim’s family and a fine to the king, particularly when the killing occurred outside Stockholm, the capital (Ylikangas 2001: 15–28; Karonen 2001: 99–104).

Gradually, though, homicide cases came to be dominated by the state rather than the victim’s family (see, e.g., Dean 2001: 5–9, 104–7). The state, in turn, came to be dominated by professionals. In England, for example, the prosecution could long employ a lawyer, but did not do so with any regularity until the 1730s. That same decade saw the relaxation of the rule that a defendant could not be represented by counsel, although, initially, the lawyer was largely confined to cross-examining the prosecution witnesses (Beattie 1986: 352–62). As the eighteenth century progressed, medical evidence, for the prosecution ...